SAN JOSE, California -- Is the Internet a physical space bound by the laws of its various locales, or does it transcend the mere physical, putting it beyond the reach of any one country's regulations?
That's essentially the question U.S. District Court Judge Ronald Whyte will answer when he decides on a defense motion to dismiss U.S. v. Elcomsoft, the case that began last July with the arrest of the Russian programmer Dmitri Sklyarov.
In Monday's hearing here, Joseph Burton, Elcomsoft's attorney, argued that when the company released its "Advanced eBook Processor" -- a program that allows owners of Adobe e-books to convert their e-books from the Adobe e-book reader format to a less-restrictive format -- it did not violate U.S. law because the software was not made available in America, but rather "on the Internet, and we take the position that the Internet is a (different) place," Burton said.
Burton said that the Internet is an international, "ambient" realm, meaning that it is "everywhere and nowhere" and that it "transcends the idea of being only physical." Therefore, he said, conduct that occurs on the Internet is "extraterritorial" of U.S. laws, specifically the Digital Millennium Copyright Act (PDF), the 1998 law that Elcomsoft is charged with violating. The DMCA, Burton added, was not meant to apply extraterritorially -- that is, Congress only intended for the act to apply within the United States.
The question of jurisdiction has long dogged attempts by various countries to regulate the Internet, but so far there have been few relevant binding judicial opinions, which is why Judge Whyte's decision on the motion could potentially be an important test of the controversial law. He issued no ruling Monday, and both sides said they could not predict when a decision would come.
In court on Monday, Whyte entertained Burton's view of the Internet, but he had many questions for Burton on how a "non-physical" Internet would fit in with the law.
"Are you saying that no country has jurisdiction (over the Internet)?" Whyte asked Burton.
"No," Burton replied, explaining that he meant that the Internet could indeed be regulated, but only in a limited fashion. A U.S. law like the DMCA might have applied to Elcomsoft if the company had "uploaded" its software to the Internet from within the United States -- but since the company uploaded its software from Russia, where the United States has no jurisdiction, the law didn't apply, Burton said.
More global regulation of the Internet could only occur by treaty, Burton told the judge, comparing the Internet to outer space, whose rules are also defined by treaty and not by the laws in sovereign states.
But Assistant U.S. Attorney Scott Frewing argued that the government had a right to prosecute Elcomsoft regardless of where it uploaded the software onto the Internet, because the software eventually ended up on Elcomsoft's U.S. server, located in Chicago.
"If the U.S. wanted to search this server, I can come to this courthouse and get a warrant to search it," Frewing said. The Internet is a physical presence made up of a series of connected computers, some of which are located in the United States, and if "contraband" is found on those computers, the government has the right to prosecute.
But "you could go to that server in Chicago and stare at it and take it apart and you still wouldn't have the software," Burton argued. He said that the difference between a physical server and the Internet is analogous to the difference between the brain and the mind: "Thought is different than a physical brain," he said. "Where can you access a dream? You can take your brain and cut it apart -- or, my brain, your honor -- and you still won't have access to the dream. You can only get that in the mind. That's like wherever that server is, the software is only available on the Internet."
After the hearing, Burton said he believed the judge could see his argument that merely having software on a U.S. server did not constitute illegal conduct, because that server is not where the uploading occurred.
But Burton conceded he had a tougher time convincing the judge that Elcomsoft was not "targeting" customers in the United States, since, as the prosecution argued, it did maintain a U.S. billing service and it might have known that many of the customers it was e-mailing were in the United States.
Elcomsoft CEO Alexander Katalov, who appeared in court but was not called on to speak, said after the hearing that he thought the company's argument was fundamentally sound, because he had never "trafficked" in his software in the United States.
He said that maintaining a U.S. bank account for billing "doesn't mean it's trafficking. It's just a normal business practice." Katalov added that the only way the company might know what portion of its customers were American was through server logs, but he said that the company doesn't regularly do that sort of analysis and wasn't prepared to release the numbers.
If the motion to dismiss is not granted, Katalov's lawyers intend to argue that the DMCA is "overly broad and vague in violation of the Due Process Clause of the U.S. Constitution." Pending the results of Monday's ruling, that hearing is set for April 1.
There have been few other decisions on how one country's legislation affects Internet users and businesses in other countries, the most sensational of which involves Yahoo's battle with the French government over the Internet company's sale of Nazi-related memorabilia on its site.
A French court initially required Yahoo to abide by the French law, but last November U.S. District Court Judge Jeremy Fogel ordered that the French law violated Yahoo's First Amendment rights.
In a tit-for-tat move last month, the French court brought criminal charges against Yahoo and Timothy Koogle, its former chief executive, for allegedly condoning war crimes with its Nazi sales. A trial date will be set on May 7.
